A federal judge this week will consider whether to extend restrictions on the use of tear gas, pepper balls and flash-bang grenades by officers protecting the U.S. Immigration and Customs Enforcement building in Portland.
The three-day evidentiary hearing begins Monday before Michael H. Simon in the United States District Court for the District of Oregon.
Protesters Seek Broader Injunction
Lawyers for three protesters and two freelance journalists argue that federal officers have used “excessive, indiscriminate and unnecessary” force against nonviolent demonstrators outside the South Portland ICE facility since June.
Attorneys from the American Civil Liberties Union of Oregon filed the lawsuit and are asking the court to issue a preliminary injunction barring officers from using crowd-control munitions unless people pose a direct and immediate threat.
Judge Simon has already issued a temporary order restricting officers from directing tear gas, pepper balls and similar munitions at people who are not posing an imminent danger.
The ACLU also filed a motion Sunday seeking to certify the case as a class action representing all nonviolent protesters and journalists who have or will demonstrate against federal immigration enforcement at the site.
Federal Government’s Position
Lawyers for the U.S. Department of Homeland Security argue that tear gas and other less-lethal tools are necessary to protect federal property, ensure access to the building and prevent escalation.
They contend that the Constitution does not require officers to wait until physical injury is imminent before deploying less-lethal force and warn that a sweeping injunction would be “unworkable and dangerous.”
Federal attorneys also argue that plaintiffs have not shown an agency-wide policy of retaliation against protected speech.
Expert Testimony and Evidence
Plaintiffs plan to call several witnesses, including longtime protester Jack Dickinson and former U.S. Customs and Border Protection Commissioner Gil Kerlikowske as an expert witness.
In a sworn statement, Kerlikowske criticized what he described as hundreds of uses of force and said crowd-control weapons should address actual threats rather than be used preventatively.
Portland police commanders are also expected to testify about federal officers’ tactics and how deployments of tear gas have affected city officers monitoring demonstrations.
What’s Next
Judge Simon has set aside three days for testimony and indicated he intends to rule within days after the hearing concludes.
If the court grants a broader preliminary injunction, federal attorneys have signaled they will seek a stay pending appeal.
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